clr/1982/1982_3_53.pdf

(1968)3 C.L.R. 225 disapproved. Costs—Revisional jurisdiction proceedings—Rule that costs follow the event—There is now more room for the application cf this rule in these proceedings because many administrative law prmciples have become settled. Theapplicants werepolice officers serving at Ayios Dhometios Police Station. Following a complaint attributing default of duty to them, the Nicosia Divisional Police Commander ordered aninvestigation as a result of which disciplinary charges were preferred against them. Applicants alleged that during the hearing of the disciplinary case they discovered that the investigation was erroneously initiated to an extent that vitiated the proceedings in their entirety. Hence this recourse to set the proceedings aside accompanied by an. application for a 53 Frangos & Others v. Republic

(1982)provisional order, seeking the suspension of the disciplinary proceedings now in progress, until the determination of the recourse. Counsel for the respondents raised a preliminary objection that the act or acts complained of are not of an executory 5 character and, therefore, they cannot be made the subject of a recourse under Article 146 of the Constitution. Counsel submitted that these acts areof a preparatory nature or inextricable ingredients of a composite administrative act and, therefore, not executory, because in themselves they leave the position 10 of the applicants unaffected. On the preliminary objection: Held,

(1)that only executory acts can be made the subject of a recourse under Article 146of the Constitution; that executory is an act directly productive of legal consequences; that 15 preparatory acts or acts forming part of the process designed tolead to an executory actand inextricably connected therewith, lack executory character because they leave the rights of the subject unaffected; that the decision to prosecute the applicants disciplinarily had no impact on their rights because a person 20 charged before a criminal Court or a disciplinary committee is regarded in law to be innocent until the contrary is proved as a result of a valid determination by a competent Court or a disciplinary Committee; that an accusation may attract a social stigma, is immaterial for it has no legai implications, 25 nor should such prejudices be allowed or encouraged to prevail whenever they run counter to fundamental legal presumptions as that of innocence; that, therefore, the act complained of is not of an executory character but of a preparatory character and as such is not answerable to thejurisdiction of this Court 30 under Article 146of the Constitution; accordingly the recourse should be dismissed (Papanicolaou (No. 1) v. Republic

(1968)3C.L.R. 225disapproved);that theapplication for a provisional order must fail since the possession of jurisdiction to try the recourse is a prerequisite to the examination of an application 35 for a provisional order.

(2)That in revisional proceedings costs need not, unlike civil law litigation follow the outcome of the proceedings because the litigants are not the only parties with interest inthe outcome 54 Iv 3 C.L.R. 5 —• 10 15 Frangos & Others v. Republic of the inquiry and because administrative law is a relatively new branch of the law, introduced in Cyprus after the establishment of the Republic in i960 and its principles were relatively fluid and the litigant should not be penalised for coming to Court to have his rights defined; that as time goes by, these principles become gradually settled and consequently there is increasingly more room for the application of the rule that costs should follow the event; that this is not a proper case for applying thisrule;and therefore therecourse willbe dismissed with no order as to costs. -Application dismissed. Per curiam: That the facts of the present case come nowhere near to establishing a case for a provisional order. There is no suggestion of irreparable damage and in the light of the dispute as to the facts, no illegality is presently discernible. Cases referred to: 20 Papaleontiou v. The Republic

(1973)3 C.L.R. 54; Sofocleous v. The Republic

(1971)3 C.L.R. 345; Agni N. Sofocleous v. The Republic

(1981)3 C.L.R. 360; Papanicolaou (No. 1) v. The Republic

(1968)3 C.L.R. 225; 25 Vassiliou and Another v. Police Discipl-'nary Committee

(1979)1 C.L.R. 46; Re Cush/a Ltd. [1979] 3 All E.R. 415; Republic v. Demetriades

(1977)3 C.L.R. 213. Recourse. Recourse for an order setting aside the proceedings instil uted against ihe applicants before a disciplinary committee, set up under regulation 10A(c) of the Police Disciplinary Regula30 tions and an application of a provisional order suspending the proceedings now in progress pending the final determination of the recourse against the validity of such proceedings. 35 E. Efstathiou with Z . Katsouris and A. Magos, for the applicants. A. Vlademirou, for the respondents. Cur. adv. vult. P I K I S J. read the following judgment. The applicants are police officers serving at Ayios Dhomelios police station within 55 Pikis J. Frangos & Others v. Republic

(1982)the Nicosia Police Division. They have the following rank in the police force: Applicants 1 and 2 are inspectors; applicants 3 and 4 acting inspectors, and applicants 5 and 6 police sergeants. Following a complaint, presumably attributing default of duly tothe applicants in relation to the failure 5 of a certain Kanaris to comply with the conditions of his bail bond the Nicosia Divisional Police Commander ordered an investigation under Chief Insp. A. Moustakas. The report, on the completion of the investigation was submitted to the Minister of the Interior who, in exercise of the powers vested 10 in him by reg. 10A of the Police Disciplinary Regulations, demanded that the conclusions of the investigation be referred to him for consideration and further action. Thereafter, the Minister directed the preferment of a number of charge» against the applicants before a disciplinary committee, set up 15 under reg. 10A(c). During the hearing of the disciplinary cas; against them, the applicants discovered, so it is alleged in the present proceedings, that the investigation was erroneously initiated to an extent that vit'aies the proceedings in their entirety (Andreas 20 C. Papaleontiou v. The Republic

(1973)3 C.L.R. 54). Hence this recouise to set them aside, accompanied by an application for a provisional order, seekingthe suspension of the disciplinary proceedings now in progress, until the determination of the proceedings. — -25 The irregularity complained of lays, in the contention of the applicants, in the failure of the police authorities to initiate the investigation in the manner envisaged by the Rules, notably by rule 8

(2), that requires that the Deputy Chief Constable should lake cognizance of a complaint directed against members 30 of the police force serving in more than one divisions, as the facts of this case required, and not the Nicosia Divisional Commander who would be the competent authority to direct an investigation, ifthe complaint implicated exclusively members of the Police Force serving under his command. Reg. 8

(1)35 lays down that the Divisional Commander is the authority competent to order an investigation whenever complaints aie directed against members of the police, serving within the area of h : s jurisdiction. The facts relied upon by the applicants,by no means admitted 40 56 3 CX-R. 5 10 15 20 25 30 35 40 Frangos St Others v. Republic Pikis J. by the respondents, are that the complaint made to the autho­ rities implicated members of the Nicosia, as well as thePaphos Police Division, and that in consequence it should be dealt with by the Deputy Chief Constable under reg. 8

(2). The illegality of the course followed by the police authorities is so manifest ihat the Comt should, notwithstanding the absence of any suggestion thattheapplicants are likely tosuffer anything like irreparable damage in the event of the proceedings being allowed to continue, act and suspend further action in the interests of legality. This course is, in an appropriate case, open lo the Courtonthe authorityof Sofocleousv. TheRepublic

(1971)3 C.L.R. 345, in the face of the commission of a flagrant illegality. A. Loizou, J., gave expression to the powers Oi the Court under r. 13 of the Supreme Constitutional Court Rule*, as presently applied, after reviewing the principles upon which a similar jurisdiction is exercised by courts of revisional juris­ diction in Greece and in the U.S.A. For the Court to act, the illegality must be palpably identifiable without having to probe into disputed facts. Recently, the learned Judge had occasion to examine the case law that developed on the subject, and draw attention to the care with which the relevant jurisdiction muse be exercised lesr, Ihe Court be allowed to prejudge the case before the trial runs its normal span, a necessary prelude under the law for the proper evaluation of the merits of the case (Agni N. Sofocleous v. The Republic

(1981)3 C.L.R. 360). Although what amounts to flagrant illegality is nowhere exha­ ustively defined, it appears to me to involve a clear violation of the procedure envisaged by the law or unquestionable dis­ regard of the fundamental precepts of administrative law. The notion does not encompass any defective exercise of discre­ tionary powers vested in an organ of public administration. The respondents dispute the facts averred by the applicants and maintain that the complaint leading to disciplinary procee­ dings. biing instituted against the apolicants; was separaie andindependentfrom that lodged against membersof thePaphos Police Division, though similar in. nature, in that it attribute to colleagues of theapplicants default of duty in securing campsi* ance with the terms of bai? by ζ co-accused of Kanaris who. like Kanaris "apparently jumped his bail. Consequent", reg. 8

(1)was, in their view, rightly relied upon for the investigation of the complain1:. This conflict, as tc the facts of the case, 57 Pikis J. Frangos & Others v. Republic

(1982)makes it impossible for this Court, at this stage, to express a concluded view on the propriety of the procedure followed. Therefore, the illegality complained of is presently beyond sight. But the respondents raise a more fundamental objection directed against the tenability of the recourse itself: 5 This is, that the act or acts, subject matter of this recourse, are not of an executory charactei and, therefore, not justiciable. Jn the submission of the respondents, these acts are of a preparatory nature or inextricable ingredients of a composite administrative act and, therefore, not executory, because in them- 10 selves they leave the position of the applicants unaffected. Itiswell settled that only acts ofthe administration with direct repercussions on the rights of a party affected thereby, are cognizable by an administrative court in the exercise of its tevisional jurisdiction. Counsel for the applicants argued 15 that despite the ineonate nature of Ihe subject acts, they have nonetheless the attributes of an executory act amenable to the jurisdiction ofthis Court, onthe authority of PanosPapanicolaou v. The Republic

(1968)3 C.L.R. 225. If the submission of Lhe respondents on the other hand, inthis area isupheld, the procee- 20 dings in their entirety would be unsustainable and would have to be dismissed. It is not impermissible at this stage to examine the substratum of the application in order.to ascertain whether the act impugned has, on the face of things, the insignia of an executory act or 25 generally an act litigable before this Court. (See, 'Application for Annulment before the Council of State' by Tsatsos, 3rd ed., and 'Provisional Protection in Revisional Litigation' by Skouris, 1979, p. 35). If the complexion of the case is such as to render its review beyond the ambit of Ihis Court, then 30 no question arises of granting a provisional order. For, the possession ofjurisdiction to try the recouise itself, is a prerequisite to the examination of an application for a provisional order. (See, Skouris, supra, p. 33). Therefore, we must first examine whether the act or acts, subject matter of this recourse, are 35 justiciable before this Courl. EXECUTORY ACT: Executory is an act directly productive of legal consequences. Preparatory acts or acts forming part of the process designed 58 3 C.L.R. 5 10 15 20 Fraogos & Others v. Republic Pikis J. to lead to an executory act and inextricably connected therewith, lack executory character because they leave the rights of the subject unaffected. Here, no suggestion is, made that the decision to prosecute the applicants before its disciplinary committee, set up under reg. l0A(c), had any impact on the rights of the applicants. A person charged before a criminal court or a disciplinary committee is regarded in law.to be innocent until the contrary is proved as a result of a valid determination by a competent court or a disciplinary committee, as the case rnay be. That an accusation may attract a social stigma, is immaterial for it has no legal implications, nor should we allow or encourage such prejudices to prevail whenever they run counter to fundamental legal presumptions as that of innocence. Nevertheless, I was invited to hold that the act complained of, despite its preparatory character, is amenable to the jurisdiction of this Court, on the authority of Panos Papanicolaou, supra. Triantafyllide·., J., as he then was, held that a divisible part of acompositeact hasexecutory attributes ifthe organ concerned has exercised a discretion adopting an alternative course that rnay ultimately expose the person affected thereby to gieater sanctions. There are dicta, clearly obiter in Platon Vassiliou & Another v. Police Disciplinary Committee

(1979)1 C.L.R. 46, suggesting approval of the principle enunciated in the case of Papanicolaou.- 25 I have studied the decision in Papanicolaouwith the gieatest care, more so because it aims to import an exception to the general rule that only acts directly productive of legal consequences are executory. Evidently, a decision to xollow one disciplinaiy course instead of another leaves the rights of the 30 accused unaffected. Either course for example, may lead to his acquittal that would be confirmative of h's rights all along, that he is innocent. Only a conviction has a bearing on the rights of the suspect and is amenable to review by thi» Court. The learned trial Judge does not appear to rest his 35 decision in Papanicolaou on any exception to the general rule acknowledged in any jurisdiction treating administia'ive law as a separate branch of th: law, and appears to rest his decision on the inherent justice of the principle propounded therein. I am unable to subscribe to this proposition for, I regard it 40 as wrong in principle. To sustain it would involve a clear departure from the concept of an executory act, a departure 59 PikJs J. Frangos & Others v. Republic

(1982)that introduces a deviation from the basic rule, with nothing objective to distinguish it from other preparatory acts. To sustain it, would involve acknowledging executory character to every preparatory or intermediate act that marks the future courses of a disciplinary act. Clearly, we would be travelling 5 far awayfrom theprinciplethat,only acls thatdefine to what­ ever extent it is competentfor the administration to define the rights of the citizen are amenable to the revisional jurisdiction of this Court. I propose to depart from the aforesaid judgment, notwith- 10 standing my adherence to the sound counsel of Vinelott, J., in Re Cushla Ltd. [1979]3 AH E.R.415,that thereshould be a departurefrom adecision ofa couri: of co-ordinatejurisdiction, only when the principle adopted is wrong or does not reflect the correct principles of ihe law due to oversight or an error 15 in the reasoning; and in the case of TrianiafyHides, P., one is apt to feel more disinclined to depart from his decisions, be it atfirstrnstance,given hisvast experience in thefieldof admi­ nistrative law. However, there is no room for upholding it once Ϊ formed the view that the proposition adopted therein 20 is wrong in principle {Republic (Ministerof Finance & Another) v. Demetrios Demetriades

(1977)3 C.L.R. 213). In my judg­ ment, the recourse is doomed to failure on the face of the recourse; and inasmuch as it would be futile to allow fruitless litigation to continue,I propose to dismiss it. I shall nonetht- ?5 less dwell briefly on the merits of the application for a provi­ sional order, independently of the fale of the recourse for. on the material before me, it could not, under any circumstances, but be d'smissed. PROVISIONAL ORDER: 30 A provisional order is an extraordinary measure designed to forestall the enforcement of administrative action in the interests ofjustice andadminislrative legality. The voluminous case law on the subject establishes that the unimpededrunning of the course of the administration is of paramount importarce 35 before which the interests of the applicant usually subside. With the exception of instances of flagrant illegality in thesense above outlined, the likelihood of irreparable damage is aprere­ quisite to the grant of an interlocutory order. Such damage 60 3 C.L.R. Frangos & Others v. Republic Pikis J. must be specifically and succinctly pleaded in the application. Irreparable damage encompasses damage of a kind that is irretrievable by subsequent legal or administrative action, such as the destruction of the res and irreversible physical 5 deterioration. The merits of the case are not evaluated at this stage except to the extent they undisputably emerge on the face of the proceedings. The forum for the evaluation of the merits is the trial of the recourse. The facts of the present case come nowheie near to 10 establ'shing a case for a provisional order. There is no suggestion of irreparable damage and in the light of the dispute asto the fact;, no illegality is presently discernible. Therefore, the application could not but be dismissed. COSTS: 15 In revisional proceedings, costs need not, unlike civil law litigation,follow the outcome oftheproceedingsfor, thelitigants are not the only parties with an inlerest in the outcome of the inquiry. The public retains an unabating interest in the proper scrutiny of administrative action in the interests of legality and 20 the sustainance of the rule of law. Another reason is that administrative law is a relatively new branch of the law introduced in Cyprusafter the establishment of the Republic in 1960; hence its principles were relatively fluid and the liligan; should not be penalised for coming to court to have his rights defined. 25 As time goes by, these principles become gradually settled; consequently, there isincreasingly more room for the applicalion of the rule that costs should follow the event. This is not a proper case for applying this rule; therefore, the recourse will be dismissed with no order as to costs. 30 Application dismissed. No order as to costs. 61